The Gazette 1988

GAZETT INCORPORATE D LAW SOCIETY OF IRELAND

GAZETTE

SEPTEMBER 1988

Vol. 82 No. 8 Octobe r 1988

V i ewpo i nt

235

Time Limits and Judicial Review Applications

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From the President

Viewpoint It was back in 1975 that the need was expressed for action to be taken to protect consumers against unfair commercial practices in relation to doorstep selling. Two years later the Commission of the E.C. put f o rwa rd a proposal for a Council Directive, the scope of wh i ch covered not only contracts concluded at the doorstep, but also any other form of contract initiated by a trader w i th a consumer away from the business premises of the trader. The Proposed Directive, the subject of much critical examina- tion in the intervening nine years, was finally adopted "albeit in a mu ch mod i f i ed f o r m " on 20 December, 1985 and is known as the Council Directive to Protect the Consumer in respect of Contracts Negotiated Away from Business Premises. The Directive was adopted w i th a view to ensuring that a mi n imum degree of p r o t e c t i on w i ll be afforded to a consumer in circum- stances where he concludes a con- tract or enters into a unilateral engagement w i th a trader. The Directive operates on the premise that a consumer who con- cludes a contract or enters into a unilateral engagement w i th a trader away from the business premises of the latter occupies an inferior bargaining position to that of the trader and, as a consequence, is dese r v i ng of some degree of protection. The reasoning is that a contract or unilateral engagement of the above mentioned nature will, more often than not, have emanat- ed from negotiations initiated by the trader. The element of surprise sprung upon the consumer by the trader's approach (the trader being in the position to pick the time and place), t he c o n s ume r 's inex- perience in sales techniques, the

Practice Notes

Tax Relief for Borrowing by Partners

lack of opportunity afforded to the consumer to compare the quality of the goods or service on offer w i th those on offer in the premises of that particular trader or any other trader, or to discuss or deliberate over t he a p p r o p r i a t e n e ss of entering into the contract w i th the trader concerned, are frequently pointed to as illustrations of the unbalanced negotiating position of the consumer vis-a-vis the trader. The Directive goes some way towards rectifying this by providing the consumer w i th a right to cancel, w i t h in a specified period, a contract concluded away from the business premises of the trader. Ireland, along w i th the other Member States of the E.C., was to have passed the measures neces- sary to comply w i th the Directive by 23 December, 1987. Whilst the Minister for Industry & Commerce is empowered, pursuant to Section 50 of the Sale of Goods and Supply of Services Act 1980, to make an order providing for the observance of a cooling off period in prescribed situations (during wh i ch time a consumer shall be entitled to w i t hd r aw his acceptance of the contract concerned), this power has never been invoked nor indeed have any measures necessary to comply w i t h the Directive been adopted to-date. It is hoped that 1988 will be the year in wh i ch the Minister will, albeit belatedly, make an order w i th a view to ensuring full compliance w i th the requirements of the Directive, and properly protecting the consumer. •

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Valuation Tribunal People and Places 252 Younger Members News 2 55 Badminton Club 2 57

Commun i ty Lawyers — right to practise within the E.C.

259 2 64 2 66 2 67

Book Review

Correspondence

Professional Information

Buying a Computer

269

Executive Editor: Mary Gaynor Committee: Geraldine Clarke, Chairman

Seamus Brennan John F. Buckley Gary Byrne Michael Carrigan Eamonn G. Hall James J. Hickey

Nathaniel Lacy Frank Lanigan Charles R. M. Meredith Desmond Moran

Daire Murphy John Schutte Maxwell Sweeney

Advertising: Liam O hOisin. Telephone: 305236 307860 Printing: Turner's Printing Co. Ltd., Longford. The views expressed in this publication, save where otherwise indicated, are the views of the contributors and not necessarily the views of the Council of the Society. The appearance of an advertisement in this publication does not necessarily indicate approval by the Society for the product or service advertised. Published at Blackhall Place, Dublin 7. Tel.: 7 1 0 7 1 1. Telex: 3 1 2 1 9. Fax: 7 1 0 7 0 4.

Cover Photo: (left) John L. Murray, Attorney General with Eamonn M. Barnes, Director of Public Prosecutions.

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